United States District Court, Central District of Illinois, Springfield Division
August 11, 1997
UNITED STATES OF AMERICA, PLAINTIFF,
MICHAEL R. MARTIN, WILLIAM D. LADD, MANAGEMENT SERVICES OF ILLINOIS, INC., AND RONALD D. LOWDER, DEFENDANTS.
The opinion of the court was delivered by: Richard Mills, District Judge:
"Every criminal defendant is privileged to testify in
his own defense, or to refuse to do so. But that
privilege cannot be construed to include the right to
commit perjury." Harris v. New York, 401 U.S. 222,
225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971).
In a previous Order, the Court stated that it would reserve ruling on
the issue of whether the Government could use the tape recorded
conversations between Defendant Michael R. Martin and Curtis Fleming for
impeachment purposes until it had been determined that Defendant would
testify on his own behalf. Defendant has now indicated that he will, in
fact, testify on his own behalf. Furthermore, the Government has
indicated that if Defendant's testimony differs from the statements which
he made to Fleming, it intends to introduce the recorded conversations
for impeachment purposes. Accordingly, this issue is now ripe for the
Defendant argues that the Government should not be allowed to use the
tape recorded conversations for impeachment purposes because said
statements were deliberately elicited by the Government in violation of
his Sixth Amendment rights. Defendant asserts that the Government, by
sending Fleming to secretly tape record conversations with him, violated
his Sixth Amendment right to counsel. Moreover, Defendant claims that the
statements which he made to Fleming were in no way voluntary and,
therefore, cannot be used for impeachment purposes. Defendant asserts
that without a waiver of the constitutional right to counsel which he had
asserted, the use of the tape recorded conversations is impermissible.
Accordingly, Defendant asks the Court to bar the use of the recorded
statements as impeachment material.
The Government argues that the statements were recorded as a result of
a legitimate investigation of Defendant's alleged attempts to obstruct
justice in violation of 18 U.S.C. § 1503 and 1512. Although
Defendant's statements could not be used in the Government's
case-in-chief,*fn2 the Government asserts that the statements can be
used for impeachment purposes. The Government claims that Defendant's
statements were voluntarily made and that Defendant should not be able to
hide behind the allegation that the Government illegally elicited his
statements in order to testify untruthfully.*fn3 Accordingly, the
Government asks the Court to deny Defendant Martin's motion.
The key inquiry with respect to the admission of inculpatory statements
for the limited purpose of impeachment is the question of whether the
statements were voluntary and not coerced. Oregon v. Hass, 420 U.S. 714,
722, 95 S.Ct. 1215, 1220-21, 43 L.Ed.2d 570 (1975); United States
ex rel. Adkins v. Greer, 791 F.2d 590, 596 n. 5 (7th Cir. 1986) (holding
that the key inquiry with respect to the admission of inculpatory
statements as impeachment is the issue of voluntariness). Voluntary
statements are admissible under some circumstances. E.g., Edwards v.
Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (holding
Miranda does not prohibit the use of a defendant's voluntary
statements). However, involuntary statements are not admissible for
any purpose. New Jersey v. Portash, 440 U.S. 450, 459, 99 S.Ct. 1292,
1297, 59 L.Ed.2d 501 (1979); Mincey v. Arizona, 437 U.S. 385, 398, 98
S.Ct. 2408, 2416-17, 57 L.Ed.2d 290 (1978).
"A confession will be found to be voluntary only if the government can
demonstrate that, under the totality of the circumstances and by a
preponderance of the evidence, it was not secured by the government
through psychological or physical intimidation, but rather was the
product of a rational intellect and free will." United States v. D.F.,
115 F.3d 413, 419 (7th Cir. 1997); United States v. Montgomery,
14 F.3d 1189, 1194 (7th Cir. 1994). Some sort of Governmental coercion is
necessary in order to find that confession is not voluntary. Colorado v.
Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 521-22, 93 L.Ed.2d 473
(1986); United States v. Haddon, 927 F.2d 942, 946 (7th Cir. 1991).
Accordingly, there must be an "essential link between coercive activity
of the State, on the one hand, and a resulting confession by a
defendant, on the other." Connelly, 479 U.S. at 165, 107 S.Ct. at 521;
D.F., 115 F.3d at 419.
In the "instant case, the Court finds that Defendant's statements were
voluntary. Fleming recorded four separate telephone conversations with
Defendant. of those conversations, Defendant initiated three of them.*fn4
Furthermore, there is no evidence on the tape to indicate that Fleming,
on behalf of the Government, coerced Defendant into making any
statements. Defendant was not under duress, physical intimidation, or
psychological intimidation by the Government when he made the statements
at issue. Accordingly, the Court finds that under the totality of the
circumstances, Defendant's statements were the product of his rational
intellect and free will.
B. RIGHT TO COUNSEL
However, the Court's inquiry does not end here. Defendant also argues
that when Fleming tape recorded his conversations for the Government, he
"deliberately elicited" incriminating statements from him in violation of
his Sixth Amendment right to counsel. See Maine v. Moulton, 474 U.S. 159,
173-74, 106 S.Ct. 477, 485-86, 88 L.Ed.2d 481 (1985);
United States v. Henry, 447 U.S. 264, 270, 100 S.Ct. 2183, 2186-
87, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 206,
84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964). Defendant asserts that even
though the Government knew that his right to counsel had attached, the
Government, through Fleming, initiated an interrogation without the
presence of his counsel. Therefore, because the Government violated his
"core constitutional right," Defendant states that the Government should
be barred from using his statements for impeachment purposes.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for
his defence." U.S., Const Amend. VI. The U.S. Supreme Court has stated
that the essence of the right to counsel is the opportunity to consult
with an attorney and to have an attorney prepare a defense for trial.
Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) A
defendant's attorney is to be a "medium" between him and the Government.
Moulton, 474 U.S. at 176, 106 S.Ct. at 487. "For the fruits of
postindictment interrogations to be admissible in a prosecution's case in
chief, the State must prove a voluntary, knowing, and intelligent
relinquishment of the Sixth Amendment right to counsel." Michigan v.
Harvey, 494 U.S. 344, 349, 110 S.Ct. 1176, 1179, 108 L.Ed.2d 293 (1990);
Patterson v. Illinois, 487 U.S. 285, 292, 108 S.Ct. 2389, 2394-
95, 101 L.Ed.2d 261 (1988).
In Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631
(1986), the U.S. Supreme Court created a bright-line rule for deciding
whether a criminal defendant who had asserted his Sixth Amendment right
to counsel had subsequently waived that right. In Jackson, the Supreme
Court opined that
"if police initiate interrogation after a defendant's assertion, at an
arraignment or similar proceeding, of his right to counsel, any waiver of
the defendant's right to counsel for that police-initiated interrogation
is invalid." Id, at 636, 106 S.Ct. at 1411. The Supreme Court reached its
conclusion by superimposing the reasoning of Edwards v. Arizona,
451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which had announced
a "prophylactic rule" in the Fifth Amendment context, onto the Sixth
Amendment. Jackson, 475 U.S. at 636, 106 S.Ct. at 1411. Accordingly, the
Supreme Court held that any such waiver is presumed to be invalid and
that the evidence obtained pursuant to such a waiver is inadmissible in
the Government's case-in-chief. Id.
Four years later, the U.S. Supreme Court revisited this issue. In
Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293
(1990), the Supreme Court held that a statement made to a police officer
which was taken in violation of Jackson could be used to impeach a
defendant's testimony. Id. at 351-52, 110 S.Ct. at 1180-81. The
Supreme Court reached its conclusion by distinguishing between a
violation of "prophylactic standards" and "constitutional violations."
Jackson's roots, the Supreme Court stated, are in Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda imposed
prophylactic standards on the Government to safeguard the Fifth
Amendment; it did not create new Constitutional rights. Harvey, 494 U.S.
at 350, 110 S.Ct. at 1180; Michigan v. Tucker, 417 U.S. 433, 446, 94
S.Ct. 2357, 2364-65, 41 L.Ed.2d 182 (1974). Simply because the
Government may have violated an accused's Miranda rights, it does not
necessarily mean that the accused's Fifth Amendment rights have also been
violated. Harvey, 494 U.S. at 350, 110 S.Ct. at 1180.
Thus, while statements taken in violation of a prophylactic ride cannot
be used in the Government's case-in-chief,*fn5 the Government may use
the statements for impeachment purposes. Id. at 351-52, 110 S.Ct.
at 1180-81. The Supreme Court reasoned that while the Government
should not be allowed to support its case based upon evidence acquired in
contravention of Constitutional guarantees and corresponding judicially
[i]f a defendant exercises his right to testify on his
own behalf, he assumes a reciprocal "obligation to
speak truthfully and accurately," we have consistently
rejected arguments that would allow a defendant to
"`turn the illegal method by which evidence in the
Government's possession was obtained to his own
advantage, and provide himself with a shield against
contradiction of his untruths.'"
Id. at 351, 110 S.Ct. at 1180 (citations omitted). Accordingly, for a
Jackson prophylactic violation, the Government may use a defendant's
statement against him for impeachment purposes.*fn6
Id. at 352, 110
S.Ct. at 1181.
In the case at bar, Defendant argues that his was not a prophylactic
violation but was a core constitutional right violation. Therefore, his
statements are not available for impeachment purposes.
The Court disagrees. Nothing in the Sixth Amendment prevents an accused
from voluntarily speaking with the police outside the presence of his
attorney. Id. Although "a criminal defendant will not ordinarily be held
to have assumed the risk that those to whom he speaks (after the right to
counsel has attached) are state agents, even when those to whom he speaks
are his codefendants," Jenkins v. Leonardo, 991 F.2d 1033, 1037 (2nd
Cir. 1993),*fn7 Defendant was advised and knew that any statement he
made could and probably would be used against him. Moreover, the
Government did not deny Defendant the right to counsel, rather it
initiated a interrogation of Defendant after he had invoked his right to
counsel, i.e. a Jackson prophylactic violation.
C. WAIVER OF RIGHT TO COUNSEL
The next step for the Court to take is to determine whether Defendant
made a knowing, voluntary, and intelligent waiver of his prior asserted
right to counsel. "For the fruits of postindictment interrogations to be
admissible in a prosecution's case in chief, the State must prove a
voluntary, knowing, and intelligent relinquishment of the Sixth Amendment
right to counsel." Harvey, 494 U.S. at 348, 110 S.Ct. at 1179;
Patterson, 487 U.S. at 292, 108 S.Ct. at 2394-95; Brewer v.
Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977).
The Government bears the burden of showing that a waiver is voluntary,
knowing, and intelligent. Id.
Here, the Government has offered no showing that Defendant waived his
prior asserted right to counsel. Indeed, it would be difficult for the
Government to make such a showing because Defendant was unaware that
Fleming was working for the Government when the two spoke.
Accordingly, the Court must decide the issue which the Supreme Court in
Harvey specifically left open: whether a defendant's voluntary statement
obtained in the absence of a knowing and voluntary waiver of the right to
counsel is admissible for impeachment purposes? Harvey, 494 U.S. at 354,
110 S.Ct. at 1182. The authority available on this issue is admittedly
sparse. However, the Court is persuaded by "the cases which are available
that a defendant's voluntary statement obtained in the absence of a
knowing and voluntary waiver is admissible for impeachment purposes.
Initially, the Court notes that it rejects the holding of United States
v. Spencer, 955 F.2d 814 (2nd Cir. 1992). In answering the question left
open by the Supreme Court, the United States Court of Appeals for the
Second Circuit stated:
our choice is to require a knowing and voluntary
waiver of the right to counsel, even where the
statement given is shown to be voluntary. We conclude
that, in the absence of a later waiver of the
initially invoked right to counsel, any subsequent
statement transgresses the core constitutional right
to counsel, rather than a judicially created
prophylactic rule for the protection of that right,
and therefore should not be available to the
prosecution for any purpose.
Id. at 820. Accordingly, the Second Circuit remanded the case for a
determination by the district court as to whether the defendant had made
a knowing and voluntary waiver of his right to counsel.*fn8
However, in this Court's opinion, the Second Circuit gave too little
weight to the concerns expressed by both the U.S. Supreme Court and other
Courts of Appeals that by deeming such statements inadmissible for
impeachment purposes, the exclusion potentially provides a defendant with
a shield against contradiction of his untruths and "diminishes the
Court's "search for truth in a criminal case." See Harris, 401 U.S. at
225, 91 S.Ct. at 645; Hass, 420 U.S. at 722-23, 95 S.Ct. at 1221.
For example, "the Fifth Circuit has stated in dicta that "[i]t is well
established that the prosecution may use a statement obtained in
violation of' the Sixth Amendment to impeach a defendant's false or
inconsistent testimony." United States v. Laury, 49 F.3d 145, 150 (5th
Cir. 1995) (footnote omitted).
In addition, the Tenth Circuit has on at least two occasions allowed
the use — for impeachment purposes — of a defendant's
statement obtained in violation of the defendant's Sixth Amendment right
to counsel. "In United States v. McManaman, 606 F.2d 919 (10th Cir.
1979), the defendant made incriminating statements to a Government
informant who was wearing an electronic transmitter. Id. at 923. The
Government recorded the con